CEDH · CASELAW;COMMUNICATEDCASES;ENG — 20 mai 2016

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt }   Communicated on 20 May 2016   FOURTH SECTION Application no. 39058/12 Yucel DURMUS against Poland lodged on 9 June 2012 STATEMENT OF FACTS The applicant, Mr Yucel Durmus, is a Dutch national who was born in 1969 and lives in Helmed. He is represented before the Court by Mr   A.   Paliwoda, a lawyer practising in Ełk, Poland. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. In the course of investigations into the drug trade, the police arrested a certain P.K., who stated that he had been buying drugs from a Dutchman who often came to Ełk. On 29 June 2009 at 6 p.m. two police officers A and B stopped a car driven by the applicant. The applicant spoke no Polish and the police officers had only a basic command of English. The police officers were armed and put handcuffs on the applicant. The applicant was not informed of his right to remain silent or of the reason for his arrest. The police conducted a search of his car, during which a bag of drugs was discovered. He was taken to the police station where the police officers continued their attempts to question the applicant, in particular concerning the origin of the drugs. The applicant repeatedly asked for a lawyer and refused to talk to the police. On 29 June 2009 at about 10 p.m. a German interpreter arrived. The police informed the applicant that it had not been possible to find a Dutch or English interpreter. The applicant accepted the assistance of the interpreter since he had some knowledge of German. In the presence of the interpreter the police continued to question the applicant. He refused to cooperate without a lawyer. On 30 June 2009 the applicant was allowed to make two phone calls to the Consulate of the Netherlands but they were not able to assist him. On 1 July 2009 at 3 p.m. the applicant appointed a lawyer of his choice. Directly afterwards the applicant, assisted by the lawyer, was met by the Ełk district prosecutor, who heard and charged the applicant. On 10 March 2010 the Olsztyn Regional Court convicted the applicant of having trafficked 3,700 grams of a narcotic substance from the Netherlands to Poland with the intention of selling it in Poland. The applicant was sentenced to three years and six months’ imprisonment. The court’s decision was based on various pieces of evidence including an expert opinion on the nature of substances found in the applicant’s car and flat. The court heard the two police officers, A and B, who had interviewed the applicant during the first two days and admitted their statements as evidence. They also questioned the German interpreter who had assisted the applicant in his interviews with the police officers. According to the interpreter the applicant had understood all the questions and the information and did not indicate any difficulties in understanding them. In the course of the proceedings the authorities were also communicating with the applicant in German and he did not indicate to them any difficulties as regards his command of the language. However, when the bill of indictment was lodged against the applicant, the German interpreter informed the authorities that, although the applicant could communicate well in German, his ability to read in that language was limited. The court also took into account the document, in German, signed by the applicant after his arrest, which explained the rights of an arrested person. The trial court thus dismissed as unfounded allegations that the applicant had not been informed, in a language understood by him, of his rights and the circumstances of his arrest. The court then stated: “The court considers that the collected evidence conclusively shows that [the applicant] was arrested in Poland after driving there from the Netherlands and the marihuana had come from the latter country. During the first interrogation the accused did not contest from where he had come with the drugs, but only the amount thereof.” The domestic court concluded that the applicant had undoubtedly crossed borders within the European Union and had trafficked large quantities of psychotropic substances, from the Netherlands, in order to sell them in Poland. The applicant appealed against the judgment. In his appeal he argued that there had been a violation of his defence rights in breach of the domestic law and Article 6 of the Convention in that he had not been represented by a lawyer during the interrogations by the police. He submitted that the trial court had relied on incriminating evidence obtained from him by the police officers A and B. On 7 October 2010 the Białystok Court of Appeal upheld the judgment. In respect of the applicant’s allegations the court held: “Without being compelled to do so, [the applicant] spontaneously started talking to police officers. Such behaviour cannot be considered as making a statement in breach of defence rights. There was therefore no prohibition against hearing them as witnesses as regards the facts which the police officers learned during that conversation.” The Court of Appeal also found that the applicant had been allowed to appoint a lawyer. According to the court, the domestic law provided that such an appointment should be made “promptly” ( niezwłocznie ) which, however, did not mean “immediately” ( natychmiast ). The court considered that in the circumstances of the instant case the applicant’s defence rights had not been breached, as the lawyer of his choice had been appointed on 1   July 2009. The applicant lodged a cassation appeal in which he again raised a complaint about the breach of his defence rights. On 13 October 2011 the Supreme Court dismissed his cassation appeal. The Supreme Court noted that after the applicant’s arrest and the search of his car, at about 9.45 pm on 29 June 2009, it had not been technically possible to provide him with a lawyer. The next day the applicant was allowed to call the Consulate of the Netherlands twice; the representatives of the consulate contacted the lawyer Mr Paliwoda, who obtained a power of attorney from the applicant on 1 July 2009 and has represented him ever since. The Supreme Court concluded that such circumstances clearly show that no breach of the domestic law or the Convention had taken place. The court also agreed with the lower courts’ assessment that the statements made by the applicant to the police officers during his arrest had been in the course of spontaneous conversation, made on the applicant’s initiative, to which he had not been forced. The trial court was thus right to accept as evidence the statements made by police officers A and B concerning their conversations with the applicant. B.     Relevant domestic law and practice Article 245 § 1 of the Code of Criminal Procedure provides as follows: “The arrested person, upon demand, shall be allowed to contact a lawyer promptly by any means available and also to talk directly with the latter...” COMPLAINT The applicant complains under Article 6 § 3 of the Convention that his right to defence had been breached by the late appointment of a lawyer. He emphasised that during the first two days the authorities had ignored his requests for a lawyer, at the same time repeating attempts to obtain from him incriminating statements which later were used in the court.   QUESTION TO THE PARTIES Having regard to the fact that the applicant was questioned by the police in the absence of a lawyer on 29 and 30 June 2009, did he have a fair hearing in the determination of the criminal charges against him, in accordance with Article   6 §§   1   and   3   (c) of the Convention?